Daily Business Review: Elder-Abuse Plaintiffs Attorneys Weigh In After Nursing Home Deaths

Daily Business Review
By: Celia Ampel
Daily Business Review
September 15, 2017

Elder-law attorneys were quick to weigh in Thursday on the legal implications of eight deaths at a Hollywood nursing home following a loss of air conditioning during Hurricane Irma.

Any need for regulatory reform will be determined by the facts as they emerge, said Fort Lauderdale attorney Jonathan Gdanski of Schlesinger Law Offices. Key questions, he said, would include the following: What steps, if any, were taken to transport nursing home residents? Was the facility monitoring the deterioration of patients over time? And what plans were in place to help those who needed assistance the most?

“?Some of the most basic facts still need to be determined, yet what is already known seems to present a clear picture of absolute, complete, reprehensible conduct, which resulted in death,” said Gdanski, a plaintiffs lawyer focused on catastrophic personal injury and medical malpractice.

Meanwhile, he said, “the large majority” of caregivers across the state appear to have been adequately cautious in the face of the storm.

More than 150 residents of the Rehabilitation Center at Hollywood Hills were evacuated to hospitals Wednesday. Three people were already dead when first responders arrived, and five more died that afternoon. Gov. Rick Scott called the deaths “unfathomable,” and state and local authorities have started a criminal investigation.

The nursing home’s administrator, Jorge Carballo, said in a statement that the facility was “cooperating fully with relevant authorities to investigate the circumstances that led to this unfortunate and tragic outcome.”

Broward County reported the nursing home told officials Tuesday the air conditioning was out but did not request help, according to the Associated Press. The facility complied with a state law requiring an evacuation plan and hurricane drills.

“I have been litigating nursing abuse cases throughout Florida for years and this is the worst case I have seen,” said Fort Lauderdale attorney Marcus Susen of Koch Parafinczuk Wolf Susen.

The Hollywood nursing home seems to be an outlier rather than an example of a systemic problem, said Miami attorney Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine.

“I believe our existing regulatory scheme is sufficient to administer nursing home and rehabilitation facilities,” said Katzen, whose practice includes elder abuse cases. “However, the existing regulatory system needs to be enforced. This facility apparently had a long list of violations.”

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Daily Business Review: Litigation Department of the Year

Daily Business Review

Kluger Kaplan Litigation Department of Year

Alan Kluger, Marko Cerenko, Todd Levine, Steve Silverman and Abbey Kaplan, of Kluger, Kaplan, Silverman, Katzen & Levine. Photo via DBR.

Litigation Department of the Year

General Litigation – Midsize

Kluger Kaplan

The 31-attorney litigation boutique is known nationally for taking on complex, high-stakes disputes across a range of disciplines and industries.

Kluger Kaplan’s trial lawyers have earned national recognition as determined and effective client advocates. Their expertise is in business and corporate litigation, real estate litigation, securities and financial fraud, corporate governance, probate and estate, bankruptcy litigation and debtor and creditor’s rights, federal and state appeals, professional liability, intellectual property, class actions and complex matrimonial litigation.

The firm is called upon by general counsel from companies across the country to litigate big matters.

Its cases include litigation against Donald Trump’s company, Alex “A-Rod” Rodriguez’s divorce, the Fontainebleau Las Vegas director and officer liability case, litigation against developer Art Falcone and his Miami Worldcenter project, the Victor Posner estate battle, Claudio Osorio’s investment fraud litigation and the Dollar Tree restrictive covenant cases.

Click to read more at DailyBusinessReview.com.

Daily Business Review: Florida Standard for Expert Opinions Uncertain After Decision

Kluger Kaplan associate, Gina Rhodes, is featured in today’s Daily Business Review Board of Contributors Column:

Florida Standard for Expert Opinions Uncertain After Decision

Commentary by Gina Rhodes, Daily Business Review

Gina Rhodes

On Feb. 16, the Florida Supreme Court declined to adopt the 2013 amendments to the Florida Evidence Code which replaced Frye standard for expert witnesses with the Daubert standard.

In its opinion, the court stated, “We decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.” The ruling shows the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty about the standard attorneys and judges should apply for expert witness opinions going forward.

In 2013, the Florida Legislature amended the Florida Evidence Code Sections 90.702 and 90.704 regarding expert opinions. The purpose of the amendments was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions in order to put Florida in line with the federal courts and most states. Under the Frye standard, an expert opinion based on a scientific technique was admissible only if such technique was “generally accepted” as reliable in the relevant scientific community. Under Daubert, the standard is arguably broader.

The amended version of Section 90.702 adds that an expert witness can testify if: “The testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.” Section 90.704 was also amended to prevent inadmissible evidence from being disclosed to the jury through an expert opinion unless the probative value “in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” The Daubert standard has governed the admissibility of expert witness testimony since the statutes were amended.

The Ruling

In declining to adopt the 2013 versions of the amended sections, the court explained that even though it is the policy to adopt provisions of the Florida Evidence Code “as they are enacted and amended by the Legislature,” “on occasion the court has declined to adopt legislative changes … because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The court noted the committee recommended by a 16-14 majority not to adopt the amendments and “in support of its recommendation, both the committee and commenters … raised what we consider ‘grave constitutional concerns.’ ” The concerns were not discussed in detail in the opinion but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Ricky Polston, concurring in part and dissenting in part, disagreed with the majority for failing to replace the Frye standard with the Daubert standard, honing in on the fact that the Daubert standard is followed not only in federal courts but also in “36 states.” Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts” and in fact cited to case law across the nation stating the opposite.

Overall, unless and until the Daubert standard is challenged in a “proper case or controversy” where the Florida Supreme Court has an opportunity to review the constitutional issues it referenced, the ruling could have a substantial impact in the trial courts.

For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Florida Supreme Court, the court should use the Frye standard in ruling on the motion.

Appeals of trial and appellate court rulings on these issues could lead to a determination by the Florida Supreme Court regarding the constitutionality of the Daubert amendments. However, until then, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging or excluding expert opinions under the Florida Evidence Code.

Gina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. She focuses her practice on commercial litigation disputes in both state and federal court.


What Lawyers Need to Know in Presenting Their Case to a Judge, Part 2

By: Ronald Dresnick

Pressure On

There are other key factors to consider that will increase your courtroom effectiveness. Many lawyers decide against traveling to the courthouse to make their arguments. In fact, the Rules of Procedure provide that you can request the court to allow you to present your argument by phone if the hearing will prove to be inconvenient. I only have one rule for you to remember concerning this point: if you want to lose your motion, argue it by phone.

A lawyer’s stock and trade is his or her time. That rule applies evermore so for judges, so remember these few rules. First and foremost, respect the judge’s time. Don’t be late for hearings. Don’t keep the judge or even more importantly, the jury waiting. You’d be amazed at the number of times lawyers have walked into a 30 minute special set hearing five to fifteen minutes late.

Also, do you best to get your documents filed on time. Failure to do so could result in your motion or reply being stricken. And even if not technically stricken, your papers are unlikely to be read by the court before the judge makes her initial consideration. It’s also wise to provide a courtesy copy to the judge even though you have already filed your motions with the clerk. Although some judges prefer not to have paper copies, many still print out a copy to make notes or to have them handy when faced with a few minutes of down time.

Remember, it is all about perspective. Your perspective is standing before the judge. The judge, on the other hand, sits facing you, and what you don’t see is every other lawyer sitting in that courtroom, including the long line of attorneys waiting for you to finish your presentation (argument, rant, etc.). Think about it. The pressure rests on the judge.

I have many more tips to add but have run out of space.

Read more: http://bit.ly/1RBuFjZ

Walgreens’ Lincoln Road Deal Rejected by 3rd DCA

07/01/14-  Miami Beach-  Walgreens at 100 Lincoln Road.

07/01/14- Miami Beach- Walgreens at 100 Lincoln Road.

By Samantha Joseph, Daily Business Review

It turns out 100 Lincoln Road is not the “corner of happy and healthy” for the Walgreen Co., after an appellate court Wednesday blocked the national retailer’s $28 million real estate deal in Miami Beach.

Walgreens owns four commercial units at Decoplage Condominium, a Miami Beach high-rise on coveted Lincoln Road. Its retail space is part of the large mixed-use project with 625 condos and 42 commercial units on the highly trafficked retail corridor.

That prime space nearly yielded millions for Walgreens in 2014 when the company struck a $28 million deal with 100 Lincoln Rd SB LLC, an affiliate of New York-based private equity group Nightingale Properties.

Read more:  http://bit.ly/1nbIo3J